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Judgment
Title: | Director of Public Prosecutions -v- M.R. |
Neutral Citation: | [2017] IECA 130 |
Court of Appeal Record Number: | 48/13 |
Central Criminal Court Record Number: | CCDP0012/2012 |
Date of Delivery: | 06/02/2017 |
Court: | Court of Appeal |
Composition of Court: | Birmingham J., Sheehan, J., Mahon J. |
Judgment by: | Birmingham J. |
Status: | Approved |
Result: | Dismiss |
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THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.No. 48/13 The People at the Suit of the Director of Public Prosecutions Respondent Appellant
JUDGMENT of the Court delivered on the 6th day of February 2017 by
Mr. Justice Birmingham
1. On the 6th February, 2013, the appellant was convicted of four counts of indecent assault. The indictment on which he had stood trial contained fifteen counts in all. Two counts of indecent assault in respect of each summer between 1975 and 1982, and one count of rape alleged to have occurred in the summer of 1981 or 1982. He was convicted on counts of indecent assault relating to the summers of 1980 and 1982 when the complainant was aged 12 years and 14 years. Subsequently, on the 25th February, 2013, he was sentenced to eighteen months imprisonment in respect of each count relating to the summer of 1980 and to four years imprisonment in respect of the summer of 1982 counts. All sentences were to run concurrently, with the final year suspended. This judgment deals with the appeal against conviction.
2. The procedural history of the appeal is a somewhat complicated one. A notice of appeal with a number of grounds of appeal was lodged on behalf of the appellant. These were directed to the argument that the conviction was perverse. Subsequently, a motion was brought seeking liberty to have a further ground added, arising from the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Gormley [2014] 1 I.L.R.M. 377, notwithstanding that at trial the legality of the appellant’s detention had been conceded.
3. On the 28th July, 2014, the appellant was admitted to bail by the Court of Criminal Appeal in circumstances where it appeared likely that he would have served the sentences imposed on him before his appeal came on for hearing.
4. Following a change of legal team, submissions were delivered in substitution for those that had originally been filed.
5. The grounds of appeal advanced in written submissions were:
1. That the direction in relation to corroboration that was given by the trial judge was inadequate.
2. That the trial judge erred in telling the jury that proof beyond reasonable doubt was not proof beyond all reasonable doubt.
3. That remarks made by the judge when dealing with the issue of delay were capable of being interpreted by a jury as amounting to a comment on the failure of the appellant to call family witnesses.
4. That the judge had not made it clear to the jury that any consensual activity that occurred between the appellant and the complainant after she reached the age of fifteen years was not an offence.
6. None of the matters sought to be raised now on appeal were raised at trial, and there were no requisitions in respect of any of these matters. In these circumstances, counsel on behalf of the appellant, while not formally abandoning any of the grounds relied on in the written submissions, has acknowledged that having regard to decisions such as The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] 4 IR 329 he would face major difficulties in arguing grounds 2, 3 and 4, and so oral argument has been confined to ground no. 1 relating to the manner in which the trial judge dealt with the issue of corroboration.
7. Grounds 2, 3 and 4 may be disposed of quickly.
Ground No. 2
The trial judge erred in law in instructing the jury that proof beyond reasonable doubt was not proof beyond all reasonable doubt.
8. This arose in circumstances where the judge when dealing with the standard of proof commented as follows:-
“Now, the prosecution’s responsibility, as I have briefly mentioned, is to prove the case if they are to satisfy you of the accused’s guilt to that standard of proof known as proof beyond reasonable doubt. It is not proof beyond all reasonable doubt. It is not proof beyond doubt. It is proof beyond reasonable doubt and you can see the first key there, to that concept, is the use of the word reasonable. It is a doubt based upon human reaction. It is - the issue which you face is whether or not the prosecution has proved a particular element of the case beyond reasonable doubt and you can appreciate, ladies and gentlemen, that nothing can be proved beyond doubt. You can appreciate, ladies and gentlemen, that are told, even in mathematics, there is no certainty. But I think we could say, for practical purposes, that there may or may not be mathematical or scientific certainties, but that is not what you are concerned about here. You are concerned about proof beyond a reasonable doubt. You cannot, in human affairs, reach what we call certainty in respect of any aspect of decision making. So the prosecution must prove the case to that standard.”
9. This Court has to attach very considerable significance to the fact that there was no issue raised by way of requisition. Assuming that the transcript is accurate, it is the case that although there were very experienced and able legal teams on both sides of the court, nobody raised a requisition. In the Court’s view the failure to requisition on this point precludes the issue from being raised now.
Ground No. 3
The trial judge erred when dealing with the issue of delay, in that remarks made by him could be interpreted by the jury as a comment on the failure of the appellant to call family witnesses.
10. This arose in the following circumstances. The judge when dealing with delay commented as follows:-
“Now this particular case you have the antiquity. There is some degree to which some purchase can be obtained by the defence on defending the case, because the allegations, at least, are limited to the summer holidays in August, that at least arises. On the other hand that - and the position is that that is still a lengthy period and apart, altogether, from the length of time which has passed. Equally, you can - without speculating, it is proper, I think, to infer that in a given case, witnesses might, for example, not be available to the defence, who might reasonably be inferred to be of some assistance to the defence. Now, you can see, as a matter of reasonable inference, that if an event was alleged to have occurred last year when the hay was being cut, I might be able to bring in the farmer who I - the outside - who I was contracting for. I might be able to pinpoint who I was working for. I might be able to say that summer I definitely milked no cows, because I was working from 6.00 in the morning to 12.00 at night, it was a great summer and I was 10 miles away. So, you can see one could - one is deprived of the opportunity of engaging with the evidence and potentially from being witnesses. On the other hand, in this case, there are witnesses who are potentially available, that is to say the siblings of both the accused and the complainant. So, to that extent, the potential difficulty may not be as grave in this case.” (Court’s emphasis)
11. The appellant focuses on the highlighted portion of the charge and says that these remarks gave rise to a danger that the jury might have believed there was some obligation on the appellant to call those witnesses who the judge pointed out were potentially available.
12. In the view of the Court, even if there was no Cronin issue, this is not a ground of appeal that could succeed. The highlighted extract does not take into account the fact that the judge went on to say:-
“… that it might well be, in principle, that witnesses might potentially be available, but the witnesses would equally, any potential witnesses, be in a position where their evidence would be subject to the infirmity of age, might have been forgotten or might be more limited than might be supposed, given the passage of time.”
13. The Court feels that the judge was merely dealing with the issue of delay and was doing so in an appropriate fashion, and there was no question of the jury being led into error by believing that there was an obligation on the appellant to call available witnesses. The Court is of the view that there is no substance in this ground of appeal and that it is a ground which must fail even if there were no Cronin considerations.
Ground No. 4
The judge erred in law in failing to make it clear to the jury that any consensual activity between the appellant and complainant after she reached the age of fifteen years was not an offence.
14. The appellant has focused on a particular passage which was as follows:-
“So what a jury have to do, when they are adjudicating on a particular offence, is decide obviously whether or not the physical action constituted the offence took place but also you have to look at the issue of whether or not the accused had the relevant or necessary state of mind, because both elements must be proved by the prosecution if the prosecution is to prove the case beyond a reasonable doubt.”
15. The appellant says that it would not have been clear from this extract that consensual sexual activity between the appellant and complainant after the complainant reached the age of fifteen years was not an offence. Once more, the Court is of the view that even absent Cronin considerations this point is not one that would succeed. The appellant ignores the fact that the judge also commented to the jury:-
“So, in the case of an indecent assault, obviously I, as an adult, or any one of you, could consent to being engaged in touching of that kind, but a person under the age of 15 is incapable of giving a valid consent.”
16. The respondent says that the charge as a whole left the jury in no doubt that a person under fifteen years of age could not consent to sexual activity but that a person over fifteen could and that in the case of a person over fifteen years of age, consensual sexual activity which would have constituted an offence if the complainant was younger did not in fact amount to an offence. The Court agrees with this assessment.
17. The real focus of attention in the course of the appeal has been on ground no. 1 which was couched in these terms:-
“The trial judge erred in law in failing to instruct the jury adequately or at all in relation to the issue of corroboration and in particular erred in law and in fact in instructing them that the interviews with the appellant were capable of amounting to corroboration without identifying which portions of the said interviews were so capable.”
18. In order to put this ground of appeal in context, it is necessary to say a little more about the background facts and the evidence at trial.
Background
19. The appellant and complainant are uncle and niece. She was born on the 4th December, 1967, and he was born on the 23rd June, 1947. There is an age gap of approximately 20 years between them. The complainant was brought up in England, but travelled to Ireland with her mother and siblings each summer in order to stay with her grandparents on their farm in Co. Tipperary. The appellant, who is the brother of the complainant’s mother lived with his wife and family in another village nearby, but regularly carried out chores on the farm.
20. The complainant’s evidence was that she was indecently assaulted by the appellant during the time that she holidayed on the farm each summer from 1975, when she was seven years old, until 1982, when she was fourteen years old. Her evidence was that in the summer of 1975, when she was seven or eight years of age, the appellant used to pinch her “on the outside of my clothes, what would have been my breasts, even though I didn’t have any breasts at that stage”. She said that he also touched in that area underneath her clothes. This happened regularly. Then, sometime later and before she was ten or eleven years old (prior to 1978 or 1979) he began to french kiss her. When she was eleven or twelve years old, the appellant started touching her on her vagina outside her clothes (the summers of 1979 or 1980). Between the ages of twelve and thirteen (summer 1980 - 1981), he progressed to touching her on her genital area underneath her clothes. This happened mostly on a tractor at a time when she and her siblings were accompanying the appellant who was driving. While he was driving, he would put his hands under her top or touch her genitals both inside and outside her clothing. On one occasion when she was either thirteen/fourteen (summer 1981/1982), the appellant got her to touch his penis. The complainant said that the appellant also regularly touched her breast or put his hands inside her trousers while they were in the cow shed, even though her brothers and sisters were there on some occasions. In evidence the complainant also said that she had been raped by the appellant in the summer of 1981 or 1982.
21. During the course of the prosecution case, there was evidence from Garda Martina Kelly of arresting the appellant on the 11th February, 2011, and interviewing him on three occasions in Borrisoleigh garda station. In the course of the first interview the appellant denied the allegations for the most part, but admitted that he had touched the complainant’s genital area. He said that this had occurred a few days after the death of his father. The appellant’s evidence at trial was that his father died in 1983. The date of his father’s death was of some significance in the context of the trial.
22. The appellant told the gardaí that this incident occurred in circumstances where the complainant approached him while he was reclaiming land and that she rubbed herself against him. He put his hand down and touched her genital area. He told the gardaí that he had said to her that there were some 60 million people in England and asked her why was she coming on to him.
23. Evidence was given in relation to a second interview in the course of which the appellant said that he might have accidentally touched the complainant’s breast while driving the tractor, or jokingly with his elbows. He would sometimes kiss her on the jaw. In the course of a third interview that took place at 7.00 pm on the evening of the 11th February, the first interview had been at 10.45 am, the appellant said that there had been a second occasion when he had touched the complainant in the genital area. This had been an occasion when they were driving, and he had pulled in at an old creamery and put his hand on her genital area outside her clothing. He said that he did not know how old she was at the time, and he agreed with gardaí that if the complainant said that he pushed her underwear to the side then he had done so. He indicated that this creamery incident occurred after the first incident, the land reclamation incident, and he said that his father was dead at the time of this second incident. He said he was attracted to the complainant from when she was aged fourteen or fifteen and that she would often throw buckets of water at him, but other than that there was nothing else happening. He was asked about rubbing against the complainant’s breasts in the milking parlour and said “I would meet her face on and touch her breasts”. According to the memorandum of the interview, at that stage he demonstrated with his hands how he did that outside her clothes.
24. The appellant said that it would happen in the evening, sometimes out in the fields where she was on her own with him, and he would touch her under her clothes. He told the gardaí that he used to dread hearing that she and her family were coming on holidays because he knew what was going to happen. He said that the first touching of the complainant was on the occasion when he had made the comment about the fact that there were 60 million people in England.
25. The appellant gave evidence during the course of trial. In the course of his evidence, he said that he moved from the family farm when he married at 26 years of age and that during the years 1976 to 1982 he was working in forestry, but would have helped out on the family farm with certain jobs. After his father died in 1983, he sold his house and moved back to the farm. Thereafter he farmed full time. He denied the allegations made by the complainant, but admitted touching her in the genital area once. This he said was after his father’s death and after she approached him physically while he was doing reclamation work on the land. He rubbed his hand along her leg and on to her vaginal area, but was disgusted with himself afterwards.
26. He admitted that there was a further and subsequent incident which was again after his father’s death, and he described driving home with the complainant and pulling into a dilapidated creamery and rubbing her on her genital area. She said that they were going too far and they left.
Corroboration
27. The evidence at trial closed late on a Friday afternoon. The trial judge then commented to counsel that the question arose as to whether or not he should give a corroboration warning, and he wanted to hear first from prosecution counsel and then from defence counsel in relation to that. Prosecution counsel responded “well, there is material in the interviews that I would suggest is - implicates - depending on how it’s interpreted”. When the judge put further questions to the prosecution, counsel indicated that he would welcome having the weekend to look at the issue. Defence counsel interjected “I think that’s reasonable, because I need, in fairness, to look at the interviews to see if that’s right. It may well be right, as in it’s capable, i.e. a matter of fact”, to which the judge responded “I think it probably is capable of being that”.
28. The judge and counsel returned to the issue on the Monday morning before speeches. The judge introduced the issue by saying that he wanted to give both sides an opportunity to be heard because it seemed to him that obviously a number of the matters raised in the interviews and answered by the accused were capable of constituting corroboration as the term is defined, but that the question then was whether or not he should give a corroboration warning at all.
29. Prosecution counsel indicated that he had examined the matter and was of the view that there were matters in the interview which had the capacity to be corroborative of the indecent assault counts, but so far as the rape count was concerned he did not see that there was any corroboration. Prosecution counsel then brought the judge through what he saw as the relevant extracts from the memoranda of interview. Defence counsel began by saying that obviously he agreed with his colleague in relation to the rape count and that so far as the indecent assault counts were concerned, it seemed to him that a warning should be given in this case and, in fairness, that it would have to be said to the jury that there were matters that were capable of being corroborative if a certain view of certain answers given to the gardaí by his client was taken. He continued “now obviously, and it will be in my speech and your Lordship I am sure will refer to it, the answers are capable of a different view as well”, to which the judge responded “yes, that’s a matter for them”. The judge dealt with the issue of corroboration towards the end of his charge. Given the centrality of this issue to the appeal, it is necessary to quote in full what he had to say. The judge told the jury:-
“Now, I told you that there were two issues of law which I was going to address in the light of that evidence. The first pertains to the issue of corroboration. Now, I will tell you what corroboration is and I will tell you what its purpose is, if I can read it, which I don’t know that I can. Now, corroboration has been described in our courts as evidence that confirms - evidence that confirms: ‘a material’ - that’s a relevant part - ‘… of the witness’s evidence implicating the defendant in the offence.’ So, what we’ve got here is, in terms of corroboration, when I say what we’ve got here, what I’ve got here in the book as to the definition, is: ‘Evidence that confirms a material part of the witness’s evidence implicating the defendant in the offence.’ So, in the present context, the definition, or at least the issue of corroboration, arises with respect, obviously, to the complainant’s evidence, implicating the defendant in the offence, a material part, a relevant part of her evidence and that’s what corroboration is. It’s, if you like, I could put it in a different way, other evidence apart from her evidence. I suppose you could think of it, we’ll call it an extreme example, if someone was attacked, for example, on the street and gave a version of events in the witness box, you could have an eyewitness who would be independent of the person who was making the allegation or the complaint. That’s a pretty straightforward example. That is what corroboration is. It’s evidence from a source other than the complainant, say in a sexual offence case, independent, different evidence. Evidence other than her evidence, evidence that confirms a material part, a relevant part of her evidence, implicating the defendant in the offence.
Now, what is it’s purpose? Its purpose is this, one of our judges has said: ‘There can be no doubt but that the entire purpose of corroboration is to reassure a jury or court that potentially suspect evidence is both credible and reliable. Its purpose is to reassure a jury or court that potentially suspect evidence is both credible and reliable’. So, you might have, and I speak in principle, the evidence of a witness, which might be regarded as potentially suspect. Now, I don’t necessarily, when I say potentially suspect, mean - I don’t necessarily say I mean evidence which has suspicion because of bad faith or something like that. That might be only one reason why evidence might be potentially suspect. Another reason would, for example, be poor memory or inaccuracy, but you might well be, or a jury might, in principle, be in a situation, if I can put it that way to you, where the evidence might be potentially suspect in that sense and a jury would not be satisfied beyond a reasonable doubt to accept the evidence of the - say the complainant in the sex case, because of the potential suspicions about it. Corroboration then, if there is corroboration, it might, as it were, bring you a further distance to a situation where a jury might be satisfied beyond a reasonable doubt. I hope that’s clear. I believe it is.
So, I’ve told you what corroboration is. I’ve told you what its purpose is. Now, it is - any jury, even without corroboration, is perfectly entitled to convict a person of, say, a sexual offence, on the basis of the complainant’s evidence. That is to say, in this case, you are perfectly entitled to convict the accused if you see fit on his - on her evidence and no more than that. However, if there is no corroboration, in deliberating on the matter, you must be conscious that there is a danger about being convicted - about convicting. That doesn’t mean that there is a higher standard of proof than proof beyond a reasonable doubt, it doesn’t mean that. But it means, as it were, before you could reach that standard of proof beyond reasonable doubt, you would have to look at the evidence in the light of the danger which arises, if there was no corroboration, alright? So, if you were to take the view that there was corroboration, then of course that is a factor which you would take into account. But a jury, notwithstanding such danger, is entitled to convict, but they must be aware, if you like, of that problem, because if they were not aware of that problem, a jury, in principle, might as it were too easily or to quickly conclude that the standard of proof has been reached. So, the question then arises whether or not there is evidence capable of being corroborative evidence in this case. A judge decides, as a matter of law, whether particular evidence in the case is capable, as a matter of principle, of being corroborative evidence, of being corroboration. The jury, however, decide, as a fact, whether or not there is actually evidence, whether or not the evidence is or provides some corroboration. So, I don’t decide that. That’s a matter for you. I can only say, as a matter of legal principle, there is evidence here which, legally speaking, you would be entitled to regard as corroboration, but it would be a matter for you and of any jury, in given cases, to decide whether or not particular evidence constitutes corroborative evidence, alright? Now, if there is corroborative evidence here, it arises from the interviews and what the accused said in the interviews. Every syllable spoken in the interviews I don’t think you can say was corroboration, obviously. An interview must be looked at as a whole. But even if you look at an interview as a whole, there may be pieces where you could, if you like, you might disregard … for example, what is your name? I mean, no one would suggest that that would really be relevant to an analysis of the - what was said to decide whether or not the evidence amounted, as a fact, to corroboration, or some part of it. So, if there is, as a matter of principle, corroboration, it lies there in what was said to the gardaí and you, by reading those documents, have to decide whether or not, and taking all the circumstances into account, as you see fit, because what is relevant is what you think is relevant, you decide, having focused in the context of corroboration of what is there said on that material.
Now, if you look at those, you will see that, in terms of the penetrative sex, the one charge of rape, there is nothing in the interviews, apart from a denial of that, okay? So, as a matter of principle, legal principle, there isn’t anything capable of being corroboration of the rape charge. If the documents which you will be reading, as a matter of principle, give rise to corroboration, or you, as a fact, are going to conclude that they did constitute corroboration, maybe one answer would, another mightn’t, maybe all of them, it would be a matter for you, you could only take the view that they corroborated the indecent assaults, okay? So, there is a distinction between the two so that’s the position about corroboration, okay?”
30. When the judge concluded his charge, there were no requisitions from either side in relation to the issue of corroboration. Indeed, there were no requisitions from the defence side at all.
31. As stated, a notice of motion has been brought seeking leave to add further grounds of appeal on behalf of the appellant. In particular, leave is sought to argue the following ground of appeal:-
“That the trial judge erred in law in failing to instruct the jury adequately or at all in relation to issue of corroboration and in particular erred in law and in fact in instructing them that the interviews with the appellant were capable of amounting to corroboration without identifying which portions of the said interviews were so capable.”
32. In the course of the appeal, it is being urged on behalf of the appellant that it is well established that a judge has an obligation to highlight the specific items of evidence which are capable of amounting to corroboration. It is submitted that the appellant’s admission of consensual sexual activity with the complainant when she was over the age of fifteen years was not capable in law of amounting to corroboration of the complainant’s allegations of indecent assaults when she was younger. It is said that in these circumstances it was particularly important that the trial judge should specify what portion of the interviews were capable of amounting to corroboration. In the situation where the trial judge did not deal with this, there has to be a concern, it is said, that the jury may have believed that admissions of consensual sexual activity with the complainant when she was fifteen years of age or older might have served to corroborate allegations of earlier sexual activity. It is said that the point sought to be argued is one of fundamental importance and that this issue at least is of such importance that the jurisprudence of the court would permit the arguments to be made even though the issue was not raised at trial.
33. The manner in which the trial judge dealt with the issue of corroboration cannot be seen in isolation from the run of the trial. When Mr. R. gave evidence, he was cross examined by counsel for the prosecution on the basis that he had chosen to admit to activity which he was saying occurred at a time when the complainant was over fifteen years of age, when as a result such activity was not criminal in character. The issue also featured in the closing speech of counsel for the prosecution. It had featured to some extent during the course of the garda interviews, albeit that the gardaí seemed to have been operating on the basis that the significant age was sixteen years rather than fifteen years.
34. It is clear then that when counsel were discussing with the judge the relevance of the memoranda of interviews, it was obvious to all that the real question was whether the memorandum contained admissions of sexual activity at a time when the complainant was under fifteen years of age.
35. When he came to deliver his closing speech to the jury, counsel for the prosecution referred to extracts from the memoranda. When it was his turn to address the jury, counsel for the defence suggested that the remarks made by his client which were of interest to the prosecution were in fact referring to activity that had occurred after the death of the father of the appellant and so at a time when the complainant was over fifteen years of age.
36. Against that background it must have been apparent to all, including apparent to the jury, that the two incidents described by the appellant in considerable detail to the gardaí, namely the reclaiming of the field/picking stones incident and the car at the creamery incident, were both said to have occurred according to the appellant after the death of his father and so were not significant from the perspective of the criminal law.
37. There remained limited and qualified admissions to contacts on other occasions. The prosecution contended that if the memoranda were read as a whole, it was clear that these admissions related to an earlier point in time, a time before the complainant was fifteen years of age. The defence were contending that the answers given were open to the interpretation that they referred to a period in time after the complainant had turned fifteen years of age. The judge could have gone on to say that if they were satisfied that the admissions of limited contact related to a time when the complainant was under fifteen years of age, and so related to a period in respect of which charges had been proffered and were on the indictment, that was of evidential significance and was capable of amounting to corroboration. If on the other hand the jury were not satisfied beyond reasonable doubt that the answers related to the period before the complainant was fifteen years of age then the answers were not of evidential significance, were not capable of amounting to corroboration, and so it was a case where there was no corroboration. While the judge might have said something along those lines, and indeed it would have been preferable had he done so, nobody in court felt at the time that his failure to do so was significant. It may be said that had the judge gone through the memoranda line by line and highlighted each occasion when it was accepted that contact had, or might have, taken place and gone on to ask the jury to consider whether the appellant was speaking of a time when the complainant was under fifteen or over fifteen years of age, that would not necessarily have been helpful from the perspective of the defence.
38. The clear jurisprudence in this Court and its predecessor is that the court treats with caution situations where points are raised on appeal which have not featured at trial. This is not because of any desire to, as it were impose a pleading discipline, but because the fact that an issue was not raised at trial may indicate that points now said to be important were not thought to be important by those who participated in the trial.
39. In this case the Court has been provided with an affidavit from junior counsel for the appellant, who is the counsel who took the charge, about why he did not raise requisitions. He explains that he took the view that the judge’s charge dealt with the issue in the manner that had been agreed between senior counsel and the trial judge. His senior counsel had dealt with the matter in his closing speech on the basis that the answers given during the interviews were not corroborative of alleged wrongdoing because all answers given dealt with events all of which occurred after the death of the appellant’s father and therefore after the period covered by the indictment. However, in a situation where the principle that answers given in interview might be capable of amounting to corroboration was accepted by the defence, in those circumstances, he had raised no requisitions on the issue.
40. The affidavit is a very measured and very responsible one, and lends support to the impression one has that the trial judge dealt with the issue in the way envisaged, and indeed the way agreed, by all involved in the case.
41. This Court cannot conclude that the jury was confused or misled. Everything they had heard made clear to them that they were concerned with establishing whether there had been untoward sexual activity at a time when the complainant was under fifteen years of age. Nobody involved in the case was in any doubt about the fact that if the jury believed that Mr. R. had admitted that sexual activity had occurred at a time when the complainant was under fifteen years of age, this offered support to the prosecution case. Nobody who participated in this case, who heard the judge deliver his charge and who heard the evidence, including the evidence of the accused and the closing speeches of both prosecution and defence counsel, felt that the jury might have been misled into believing that admissions in relation to a period when the complainant was over fifteen years of age were of evidential significance or amounted to corroboration.
42. In these circumstances, the Court is unable to conclude that the trial was unsatisfactory or that the verdict is unsafe. The Court must therefore dismiss the appeal against conviction.
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